Timebase Pty Ltd v. Thomson Corporation, The

Filing 118

MEMORANDUM in Support re 116 MOTION to Compel Responses to Interrogatories 1 and 8 filed by Timebase Pty Ltd. SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 2/12/10. (Gasey, Arthur) Modified on 2/12/2010 (akl).

Timebase Pty Ltd v. Thomson Corporation, The

Doc. 118 Att. 18

Exhibit 23

Dockets.Justia.com

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fter dethroned Tour deFrance champion Floyd Landis asked Martin Dugard to help tell his story, one question ogged the Orange Cou&tywriter Its answer may shock you^
y Martin Dugard *PhotographyBy@ LucyNicholson/Reuters/Corbis ' s a question 1hear all the time, from friends and total stra ngers, at cocktail parties and lacrosse games, and just zcently over a white tableclo th lunch at ChapmanUniversity in Orange. Sometimes it's incredulous ("How could e d o it?"), sometimes it's accusatory CHe had to have done it"), but it all boils down to the same mystery: Did loyd Landis dope to win the 2006Tour de France? I usually duck the question, telling people about what a good uy Floyd'is, that he's a cycling savant and a physiological marvel who trains harder than nearly every other thlete i n the world. But for some reason, in the small world i n which I orbit, 1have become the conduit of all lings Floyd. I've covered the Tourde France since 1999, and so I was there that day in 2004 when he rocketed .om obscurity by pacing 'Lance Armstrong to the crucial stagevictory that sealed the Texan's sixthTour title. I iterviewed Floyd extensively at the 2005 Tour, where he mentally disengaged within the first week, crushed by l e pressure. ofleading his own team for the first time. In May 2006, with Armstrong now retired and Floyd the 'our favorite, 1 drove io nonstop hours from Milan to Barc.elona to interview him in an airport coffee shop. H e as wary but unfailingly polite, never showing the flashesofjuvenile rage ("ghet1o"'his wife calls it) that make dm a champion. Therewas a progression to that arc, the slow building of a relationship. We went from complete trangers to first-namebasis. Floyd, who lived for two years in Irvine back in the early iggos, and nowlives in ilurrieta, is W ~ F of outsiders and careful with his trust. I t was a testimony to that progression when, in Y kcember 2006, after things had gone hor ribly wrong, he asked if I would write a book detailing his side of the tory. The call made me feel important. A true insider. But more than anything else, i t was an acknowledgment hat I believed him. The objectivity I had displayed at the 2005 Tour was long gone. "Do you think he did it?" I iear i t a tot this t h e ofyear, in the months leading up to thenext Tour de France. I hear it from m y parents, and ny siblings, and my wife. I hear it from the kids on the high school cross-country team I coach. I heard it when 3arry Bonds got indicted and Marion Jones gave back her medals. I hear it more often than the question I heard ionstop back i n 2000, when I spent six weeks on "Survivor" island during the filming of that show's first ncamation. Then, as the show became a nationwide phenomenon, the nonstop question on everyone's lips was, 'Can you tell m e who won?" It was whispered conspiratorially, with a wink, as if the secret would be safe. And jften, now, that's how thosesame people ask: "Do you thinkhe did it?" fie incidentin question occurred qn Julyzo, 2006, during theiz5-mile iflhstageof theTourde France.The mute wound from Saint-Jean-de-Maurienne to Morzine. It was the last mountainous leg of that year'sTour, meaning it was Floyd's last best chance to make up the io-minute differential between himself and race leader 3scar Pereiro. Landis had appeared to have the Tour sewn up the day before, but he'd "bonked" (the endurance iport's euphemism for that moment when the body spontaneously shuts down from lack of fluid and muscle &cogen, maWng thesimple act of turning thepedais a n act of will) on the 11-mile final climb to the finish. Like the rest of the press corps, I watched the video feed of that painful scene on a flat-screen monitor inside the media tent.tVhat I remember about that daywas it was abominably hot, Lance Armstrong had selected that very day to visit the Tour,and a dozen American journalists drowned oursorrows at midnightwith omelets and red wine at an open-air mountain cafP. W e were devastated. See, everyone loved Floyd. He was the best story any writer could hope for. He was the anti-Lance, an easy interview who tossed off glib asides about his competition (always follovied by his uneasy awareness that the words might be taken out of context, and the gentle reminder "don't print that"), and who ached with an underdog's hunger to win the Tour de France. H e was the son of Mennonites (Mennonitesl) and had once been so desperate to race bicycles as a teenager that he had snuck out at midnightta train in defiance of his father'swishes. He had made theimprobable leap from mountain biking champion, to road racing champion, to landing one of the most coveted roles in all of cycling, hand-selected by Armstrong himself to join him on the US.Postal Service team (later Discovery), We loved all that. And we loved that Floyd had turned Lance into a father figure of sorts, admiring him and still wanting to beat him, and had rebelled against Lance the way he had once rebelled against his own dad. We loved it because we had all suffered the Lance treatment, held at am'slength and forced to grovel foe interviews, but giddy like golden retrievers for whatever scraps of attention the Cree t One threw our way, Floyd was different, Ha remembered our names, or just called us "dude," in passing reference to his favorite movie, "The Big Lebowski." There was never an entourage. We could all quote his wife, Amber's, wforgettable rem ark ("Floyd is one tough bitch") and agree that, it was true, H e was one tough bitch. 'He had once broken his hip in a 50 mph crash'on a sand-swept mountain road just east of the Orange Countyline, checked himself into the emergencyroom, waited without pain Mllers until his name was called (not cutting in line by mentioning that the hip socket and femur were no longer joined),

Do you think he did it?"

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nd then was miraculously riding again just three weeks later. Weloved that. We loved that Floyd dropped Fombs like the cast of "Deadwood," liked his music loud, and pretty much had no other interest in life than racing icycles. Ne never talked about sex. He never talked about partying. He never talked about real life. AU he talked >out was racing bikes. So when Floyd bonked on La Toussuire, we all died a little inside. don't hear that question at my local bikeshop becausemost cycling devotees prefer to believe that doping isn't ievalent in professional bike racing. Sure, mayae baseball and certainly football, but o nly addled, borderline d i n g pros desperate to save their careers would ever dream of doping. So I don't tell them that Floyd once 'ihandedly told me over burritos at a Chipotlenear his home, "Just so youknow, Marty, Lpnce doped." Or that loyd said it casually, a s if it was common insider knowledge. And I don't tell them what it's like at the Tour, here the riders are like rock stars and where groupies camp out in the cheap hotel lobbies in which the teams ay, or the threesome two Italian riders proposed i n rather graphieterms in a text message {hat one such groupie roudly showed me before marching off to find their room. They like to think the riders step off their bikes at the i d ofa stage, dig into a plate of carbohydrates, get a massage, and then go straight to bed. They don't see the ders as being the same as any other human being, capable of great frailty and prone to temptation. And the iought never crosses their minds that these riders might do anything i n the world, even stick a syringe into !mote places like the armpit or that predarious flap ofmuscle behind the scrotum, to avoid detection. Or that rey might inject a.drug such as EPO, which carries more oxygen-rich blood to the muscles but can kill a man by trning his blood to a thick goo; or even go to the great extreme ofremoving their own blood, having it spun in a mtrifuge, a n d then reinjecting it to boost,performance capabilities to godlike levels.

Do poi1 t?l;inkhe did it?"

Do m

m he&g it again now that Floyd has been found guilty of doping by theU.S. Anti-Doping Agency.The show

u thjnk he didit?"

ial was ted millions of Floyd's dwindling income, with a 2-1 finding by arbitrators that banished him from /cling for two seasons, The trial's most memorable moment came when Floyd's best friend and manager, Will eoghegan, prank-called three-time Tour champion Greg LeMond on the eve ofwhat was sulp to be Greg's amning testimony against Floyd. Wilt was drunk and not cognizant of the fact that: a) his anonymous call, in Mch he made allusions to Greg being.molested as a child, was a form ofwihess harassment, and b) that his nonymity was easily betrayed by anyone smart enough to *dial the number showing up on the cell phone Teen, which Greg promptly did. A red-faced Will was confronted by the evidence at the trial the following day. [ewas ushered from the courtmom and straight into rebab, b u t not beforebeing fued by Floyd. I was shocked at Till's stupidity, but not surprised. You drink a little beer with Floyd and Will, and sooner or later one of them is 3ing to get angry and do something impulsive with a cell phone. Maybe that's why I-decided not to work on loyd's book. Therewas always this feeling around those two that greatness orutter lunacywas at work. It :emed that, fo r them, the ends always justified the means. The bottom line, though, was this: Will's phone call a d undermined weeks of careful testimony by Floyd's defense team. The charges ofsynthetic testosterone in his ody had been brought into question, alongvAth the accuracy and impartiality of the French lab conducting the litlal tests on his "A" and "B"urine samples. F o s e samples are divided as a safeguard against false positives. If le "A" sample is dirty, and the "B" is clean, the athlete is declared innocent.) Floyd was not expected to appeal >eUSADAverdict-a costly process-because he is close to being poor and working the rest of his life in a bike hop with one persistent question hanging like a thought bubble over the head of each and every customer. omewhere he found the funds. The Court of Arbitration for Sport will bear his case on March ip. It is his one n d only court of appeal. If innocen!, Floyd can race professionally again. If he loses, this could very well be the nd.
rememberthat on Jutyao,2006,1 drove to thestartlinewithmycolleague Austin MurphyofSports llustra ted. After three weeks away from home and with Floyd's defeat now certain-Nobody makes Up io zinutes at t h e T o m It'sjust not done. Not Lance, not Greg LeMond, not anyone-I wanted out. My goal was to ,op the next plane back to Paris, and then home to Rancho Santa Margarita. As Austin searched for Floyd to ask !hat the hell had gonewrong, I sipped coffeein the pre-stage sponsors'viilage.and pondered whether United onnected through Geneva. The morning was b s t a l t y hot. The road to Monine included climbs over four major )asses.The finish was in a valley, next to a clear mountain nver. The final seven miles of the ride featured a witchback descent from the lofty Cot de J o w Plane, with an average gradient of almost io percent. Not only +odd the climbs be killer, but there was every chance of a major crash on that final downhill. "Floyd told me he's ,onna go off,^Austin said, finding mejust as the riders assembled in the town plaza for the start. H e w s mathless and exdted.The city was one of those oid French villages that reeked of history, the sort ofplaee that regs you to grab a book and spend the day reveling in the subtle yet glorious awareness that you are in France. 'here was no time for that. W e drove flatout to Modne.There, in the cramped pressroom, on thosesame flatcreen monitors on which we'd watched theLa Toussuire defeat, we bore witness to the greatest camebackin !ycling history. Riding far in front of the pack, Floyd attacked each and every one of those mountain passes. His earn car rode alongside him, passing him bottles of ice water, which he promptly dumped over his head to :ombat the heat. When Floyd reached the top of the J o w Plane, Austin and T sprinted Erom the pressroom to the inish line. ],stood next to Amber Landis as a giant movie screen looming over the final straightaway broadcast lei husband's progress. "Oh, baby," she whispered in fear as Floyd barely avoided crashing on those deadly lownhill switchbacks. "Oh, baby." And then, there he was, right before us, pumping his fist and digging for the ine.The deficit was nearly erased. Floyd had removed all doubt. After weeks of the French press criticizing his actical racing style as being unworthy of a champion (they are fond of the heroic attack and gallant effort, even if t ultimately leads to defeat), Floyd had'ridden the most daring and astonishing ride anyone could remember. He was whisked off to doping control. The press gathered outside, waiting for him to pee in the cup. The scrum was ro impossiblylarge that I decided to head straight for the interview trailer, hoping to get a good seat. The place Mas empty, making me feel sheepish and wondering if I'd gone to the right place. 1 sat in the front row. Just a s 1 Mas about to leave, in walked Floyd. He'd slipped out some back door of the drug testing and straight to the .nterview trailer. Now it was just the two of us, "Let m e be the first to congratulate you." "Thanks, man." We made small talk, but only for a second.Time was short. The others would be there soon. "What happened? How did you go from yesterday to today. I mean, this is amazing." Floyd launched into a stream-of-consciousness dissertation on dehydration and bonking, but his answer was lost in the sudden arrival of the world's media, all clamoring for a spot in the suddenlycrowded trailer. I stood o n the Champs Elysees three days later as Floyd was handed the victor'schalice. He had f InaUy eclipsed Oscar Pereiro during the penultimate stage. Now, on a sundrenched afternoon shortly after 5 p.m., facing an American flag and with his back to the Arc de Triomphe, Floyd Landis was crowned champion of the 2006 Tour de France. I stood with my hand over my heart as the anthem played. Just two days after being crowned champion, theTour deFrance announced it no longer considered him the winner.The urine samples taken just after his ride into Monine had tested positive. His testosterone/epitestosterone ratio was so high that World Anti-Doping Agency President Dick Pound suggested that no virgin within a go-mile radius of Floyd was safe. Rather than return to America as a herb-like Lance-Floyd did the peep walk on Lenoand Lw King. He was disgraced and sounding crazy, claiming that everything from a shot of a Jack Daniels to his own physiology had caused the bad test. The impulsivity and rage that had fueled his separation from his father and from Lance now spewed out as some sort of madman's manifesto. Floyd becam e a punch line. We all have a Floyd Landis in our lives. He is that fri end whose connection lo our existence Is broad and haphazard, having no connection to the here and now, but

;o do.[think he didit?

...

'

"Do vou think he did it?"

Nearly two years after testing positive for synthetic

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lomehow popping up often in the meniorybank:He is an end. The Court of Arbitration for Sport-the last hat wild college roommate whogot into more trouble and word in sports disagreements since 1984-will hear lad more fun than anyone else-yet was never bowed or his case, beginning on March 19.Landis' attorney, broken byauthority.People like thatstay with you, I live a Maurice Suh, will present the appeal in a five-day, :ouple miles from Whiting Ranch, a wilderness whose zlosed-door hearing. The United States Antiycamores and scrub oakswere burned to black during Doping Agency, which fobally found Landi guilty astfalI'sfires.The trail nelworkzigs through the ash like 3f doping in 7 0 7 also will present arguments. The .0, , clean scar. Duringmywriting day, while thosefires panel hearing the case is composed of Parisian Jan aged, I'd sometimes drive up to an overlooknear Whiting Paulsson, David Rivkin of New York, and'David nd watch the flames' progress. Bqck when Ftoyd was a Williams of Auckland, New Zealand. If Landis wins, iobody, just some eager Mennonite Ed who'd come to he can resume his cycling career immediately, and wine to chase his dream, he rode those trails on his more than a few teams willbe eager to sign him, nountain bike. I thought of.Ployd every time I went to provided that he conform to strict anti-doping mtch the tires, just as I thought of him when I went for a regulations.Tour de France organizers have made u n on the Champs at the end of the zoo7 Tour, and when it clear that he is not welcome at their event this 'dbaneled.throughthe south of Prance on the same road summer, and his odds of competing there ever 'd driven from Milan to Barcelona. I think of him when I again are marginal. If Landis loses, he faces a two:at atChipotle. I think of Floyd whenever someone tests year ban from competition.This would not be fatal ~ositive someone talks about what a birty sport cycling or to his cycling career, and he could continue to race s while somehow holding up professionalbaseball, , in non-sanctioned events, as he has done loosely ootball, and soccer players as the paradigm of athletic since the first accusatioss surfaced. He recently has irtue. "Crazy, isn't it?" Floyd said when I called him been in contact wi Rock Racing, an upstart ih ,ecently. We'd run down the lateat news from the doping cycling team led by coqtroversial team owner vars. He always speaks as ithe is one removed from Lhe Michael BaU, CEO and owner of the Rock & iction, not one of themost infamous doping cases in Republic denim company. Landis' role with the listory. We agreed to meet soon for coffee. At some point, team, if any, has not been defined, but the vhenever we discussdoping, the conversation takes on multimillionaire playboy Ball bas been quoted as he tone of a conspincy theory.There is too much money saying he wants a "yellowjersey to hang on my it stake, weboth agree,for .the athletes tb ever succeed. wall." lust recenlfv. theworld Anti-Dooina A~encv threw out -M.D. h e "A" simvle- "B" sample safeiuaa. c o w i n athlete can ie cosvicted of doping by the "A" standard alone. As long is there is the perception of doping, sacrificial lambs such as Floyd Landis w l be offered up by governing bodies i l and event organizers so TV deals and corporate sponsorships keep pouring billions into the world of sports. The rthletes are disposable, rep laceable, and quickly forgotten. Just a toot; just a product. We vilify the athlete, but not the governing body making a fortune off his sweat labor, condoningbad behador until public outrage forces a :hange.

,

"Doyou think he did it?"
"Doyou think he did it?"
YeS.

I've heard Floyd explain how and why he is innocent so many times I can quote the argumentsverbatim
Every hero has a secret. "Doyou think he did it?"

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